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News: Paul & Fred have reached a settlement with Stardock!

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Author Topic: My take on Stardock  (Read 111145 times)
WibbleNZ
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Re: My take on Stardock
« Reply #915 on: July 03, 2018, 03:17:06 am »

These assignments are presumably prophylactic against a challenge that the intellectual property contributed by independent contractors was not captured by work for hire. It could be completely superfluous if all the assignors were in fact employees of TfB or their contract agreements had the proper stipulations.

So, let me see if I'm absorbing the implications of the case law properly:

* Paul&Fred, by virtue of their supervisory positions, and the fact that they were credited as sole copyright holders, are the only 'authors' of the joint work "Star Control 2", while the other people involved are considered 'contributors', but not 'authors', and therefore have no copyright in the joint work.

Unless there is some evidence Accolade provided creative oversight and direction rather than publishing and consultation, that's what it looks like to me. The intention of the 1988 contract seems clear that the author would be Paul. 5.3 allows Accolade some creative input but not enough that I would consider them the author.

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* If any of the contributors felt that they should have been considered 'authors', the statute of limitations gave them three years to dispute it.

The start date for those three years is debatable though, as most courts apply it from the date the infringement was discovered or reasonably should have been discovered. The first time anyone looked at the box probably counts, but any time the word "reasonable" comes up there's room for an argument. Stardock appear to have discovered some things in 2017, but it seems a bit unworkable to allow rediscovery any time IP changes ownership - I would think any such discovery would have to be sorted prior to or at the time of purchase.

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* As the only authors of the joint work, P&F have the power to license derivative works of the whole, which necessarily includes the power to license any of its separately copyrightable components.

* The only difference that the lack of a work-for-hire relationship would seem to make is that without it, the contributors would maintain the right to license their respective contributions separately, if they so desired.

From reading Aalmuhammed v. Lee, it's possible that the other contributions (aside from music) are not independently copyrightable at all, if they were not intended to exist separately from the work.

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Does this seem about right?

One other question:  Pretend that Fred didn't exist (sorry Fred),  How (if at all) would that change the legal picture?  With only one 'author', it seems like this would no longer be a 'joint work'.  Would the same rules still apply for multiple 'contributors' providing individually copyrightable elements under the umbrella of a single 'author'?  

The only difference I see is that Fred would not be able to independently claim for infringement, create derivative works, or assign a non-exclusive license; and his permission would not be required to assign an exclusive license.
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Elestan
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Re: My take on Stardock
« Reply #916 on: July 03, 2018, 04:03:13 am »

From reading Aalmuhammed v. Lee, it's possible that the other contributions (aside from music) are not independently copyrightable at all, if they were not intended to exist separately from the work.

I'd think the art would be; any piece of artwork kind of stands on its own.

On a related topic, does anyone know where the legal test is defined for proving the validity of a copyright after the five year prima facie deadline has passed?  Stardock is clearly intending to exploit this mis-step to the maximum extent, and I'm trying to figure out what standard of proof P&F will need to meet.

And on yet another topic, I note that Stardock has filed for a trademark on Fwiffo.
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Elestan
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Re: My take on Stardock
« Reply #917 on: July 03, 2018, 04:28:58 am »

One other observation that just struck me:

The 1988 agreement, paragraph 11.5, gives Publisher "Any trademarks adopted and used by Publisher in the marketing of the Work, Derivative Works, and Derivative Products".  All of the other sentences in that section refer to "such trademarks".

So...what does that mean for trademarks (or potential trademarks) that were never used in the marketing of the Work?  It seems like that whole section would not apply.

Without any specifically applicable contract language about trademarks, this seems kind of similar to a book publishing arrangement where the author retained the copyright to the text.  Would the book's publisher be able to claim any trademark interest over the names in such a book?
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Lakstoties
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Re: My take on Stardock
« Reply #918 on: July 03, 2018, 05:03:50 am »

And on yet another topic, I note that Stardock has filed for a trademark on Fwiffo.

Wow...  And there's one for the Crimson Corporation, too!  That's going well into trademark trolling territory now.  These are terms well within the copyrighted works and have never been remotely used as anything on the products or for branding... ever...  Not by Accolade, Atari, or even Stardock.

In fact... These are two unique terms used in the recent GoFundMe Fundraiser description page!  This is ill intent trademark trolling now and possibly an attempt to use trademark for the purposes of censorship.  (Which has been protected against by legal precedence as that would allow a federal law to threaten the First Amendment.)  I can't figure out any other reason given the timing and how ultimately unenforceable such marks would be... but how much defending against would cost.
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PRH
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Re: My take on Stardock
« Reply #919 on: July 03, 2018, 01:25:57 pm »

Yes, yes it is, or at least it seems so. Although Brad stated that Stardock's ownership of the Star Control trademark is enough to prevent Fred and Paul from releasing GotP without permission from Stardock, it would at least be somewhat believable that F&P needing Stardock's permission is just a fact of IP law, and that nobody at Stardock is going out of their way to prevent F&P from releasing their game (which is exactly what Brad claims publicly). But all these trademark registrations do indeed seem like deliberate harassment. In fact, if we believe Brad's own words, these registrations would be superfluous as Stardock's ownership of the Star Control trademark is already enough.

I honestly wonder what purpose these trademark registrations really serve. Brad called them "vectors of protection". So what exactly are they protecting? Are they to help Stardock to hold on to SC2's character names if the Star Control trademark gets canceled? Or are they to help Stardock to shut F&P's blog down?

By the way, I wonder if Ubisoft owns the copyright to the old Heroes of Might and Magic games released by New World Computing - because Stardock's treatment of the Origins continuity seems pretty similar to Ubisoft's treatment of the Ashan continuity. They also reuse the character names from the old continuity, and their story and setting are superficially similar to those from the old continuity.
« Last Edit: July 03, 2018, 05:29:11 pm by PRH » Logged
Lakstoties
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Re: My take on Stardock
« Reply #920 on: July 03, 2018, 05:15:51 pm »

This whole trademark spree has gone from "a bit much" to "absolutely ridiculous" at this point.  Filing for a new "Star Control" trademark, I could get behind for Stardock.  They are using it to brand products and that new filing would be the protection needed in case the old Accolade "Star Control" filing suffers cancellation.  That's protecting yourself.  Even if they didn't file the lawsuit, it would be a wise move just to refresh your protections with an updated filing with specimens of  use on your recent goods and services.  Especially given the questionable nature that Atari renewed the trademark with that one-shot flash game.  (Technically it was a specimen of use, but... Really?)

But, filing for terms that were never used as trademarks by either Accolade or Atari (or are terms deep within a creative work... that you don't own), and presenting a wayward interpretation of the scope of trademark that goes against every bit of material on the USPTO reference material (and even the very act you are suing with)...  Is absolutely insane at this point.  I've yet to find a trademark infringement case that quite lines up with how this one has proceeded.  Even looking at the laws cited by the counts listed on Stardock's amended claim...  They don't seem remotely designed to be used like this and many have exemptions that directly protect against this kind of use. 

The more I dig, the more I find, the more distant Stardock's position seems from... well...  how everyone else treats trademark.  You'd think if this was the way such worked, far more litigious and larger companies would have tried it by now and succeeded.  Even Games Workshop has not had that much success lately with smacking people around for use of the term "Space Marine".
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Krulle
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Re: My take on Stardock
« Reply #921 on: July 03, 2018, 06:45:38 pm »

Well, their tactic can work, especially im the US, where a lot of money is invovled before going to court.
It's simple attrition of the funds available to the defendant...
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Death 999
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Re: My take on Stardock
« Reply #922 on: July 04, 2018, 12:29:04 am »

It can backfire. If one side is too ridiculous, the defense gets easier. My next door neighbor's lawyer bill dropped when new claims were added in his civil case because their addition made it clear that his former employer was just lying about everything.
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tingkagol
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Re: My take on Stardock
« Reply #923 on: July 05, 2018, 04:04:17 am »

I think "malicious intent" is grounds for some kind of legal spanking at least? (Not a lawyer)
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Elestan
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Re: My take on Stardock
« Reply #924 on: July 05, 2018, 04:32:58 am »

I think "malicious intent" is grounds for some kind of legal spanking at least? (Not a lawyer)

I believe it can be (though also not a lawyer), but proving any sort of 'intent' is pretty hard, because it requires getting inside someone's head.  And while you can get hit for the opponent's fees if your suit is deemed frivolous, P&F's initial use of "Star Control" in their post is plausible enough evidence for trademark infringement that I doubt the suit would be deemed frivolous, even if the post is ruled legal due to fair use.
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Elestan
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Re: My take on Stardock
« Reply #925 on: July 07, 2018, 03:26:47 am »

A friendly soul from Reddit just posted the recent subpoena letter.

I didn't see anything groundbreaking, but there are a few interesting tidbits in between the two sides calling each other names:

  • The essence of the letter, as expected, was P&F's attempt to quash a subpoena to their PR firm.
  • The PR firm was hired at the suggestion of P&F's attorney, and is no longer working for them.
  • P&F have disavowed the "Brad Wardell will be publicly humiliated" tweet, indicating that it was done without their direction or approval.
  • There are a couple of dueling footnotes, where Stardock tries to portray P&F's receipt of copyright assignments from the other SC2 team members as evidence that P&F were perpetuating a deliberate scam.  P&F point out that just because they had help doesn't mean that they can't be called the game's creators.

The bulk of the letter is devoted to case law justifications as to why the subpoena should/should not be quashed.  If someone more qualified than I cares to opine on them, I'm all ears.

It's posted on Dropbox right now...is there any way to get it onto CourtListener from there, or does it only accept documents directly from PACER?
« Last Edit: July 07, 2018, 03:38:50 am by Elestan » Logged
Szczepaniak
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Re: My take on Stardock
« Reply #926 on: July 07, 2018, 01:27:57 pm »

And on yet another topic, I note that Stardock has filed for a trademark on Fwiffo.

Isn't that impossible given that Fwiffo is protected under the general licensing that covers Ur-Quan Masters itself, which states no one is allowed to assume control over any of the material?
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Elestan
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Re: My take on Stardock
« Reply #927 on: July 07, 2018, 03:45:58 pm »

Isn't that impossible given that Fwiffo is protected under the general licensing that covers Ur-Quan Masters itself, which states no one is allowed to assume control over any of the material?

No, for a couple of reasons:

* First, these disputes are about the rights to the original "Star Control" games that UQM was derived from.  UQM's license can only affect downstream derivations from UQM.

* Second, UQM's licenses govern copyright, and do not directly affect anyone's ability to get a trademark.

However, the simple fact of of UQM existing and using those names could make it harder for anyone else to claim them as trademarks.
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PRH
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Re: My take on Stardock
« Reply #928 on: July 07, 2018, 03:47:03 pm »

  • P&F have disavowed the "Brad Wardell will be publicly humiliated" tweet, indicating that it was done without their direction or approval.
  • There are a couple of dueling footnotes, where Stardock tries to portray P&F's receipt of copyright assignments from the other SC2 team members as evidence that P&F were perpetuating a deliberate scam.  P&F point out that just because they had help doesn't mean that they can't be called the game's creators.

Hmm. Better late than never, I guess. Since that tweet was a PR blunder on F&P's part (as F&P were the ones who hired Singer), I believe that disavowal should have been posted publicly by F&P themselves right after that tweet had been deleted. While it may not count as decisive proof of F&P's innocence, it would at least show that they do not stand by that post publicly.

As for all that stuff about whether or not F&P can call themselves the "creators" of SC1 and SC2, I fully agree that if Stardock has been posting anything provably misleading, it's this. They have indeed been consistently trying to downplay F&P's involvement in the creation of the classic SC games. I hope I'm not making a strawman here, but if you take some of Stardock's posts at face value, you'd think that they argue that F&P deliberately left the rest of the team that worked on the games uncredited, and stole the whole credit for themselves (and that the classic SC games were produced in-house at Accolade).  None of this is true.
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Elestan
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Re: My take on Stardock
« Reply #929 on: July 07, 2018, 04:01:10 pm »

A friendly soul from Reddit just posted the recent subpoena letter

...and they have now posted the corresponding Attestation, Exhibit A, and Exhibit B, Exhibit B is kind of interesting; it gives the subjects of a bunch of emails to the PR company; I notice that they only span a period of a bit over a month.
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